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Why Argentina Won’t Make Progress in the ‘Odebrecht’ Case Any Time Soon

It's because of the limitations of the Argentine Judiciary, as per usual.

By | [email protected] | January 3, 2019 5:11pm

Photo via Semana Economica.

Roughly two and a half years from the surfacing of the Odebrecht chapter of the “Lava Jato” scandal, Argentina continues to be one of the few countries that has not taken concrete steps to judge those involved in the scheme whereby Brazilian company officials paid bribes in exchange for public works. And it looks like this will be the case for a long time still.

For two years, Argentina was not able to access information given by Odebrecht officials regarding their illegal activities in the country, in the context of their plea deals with the Brazilian Judiciary. This was because of the Argentine Judiciary’s reluctance to accept a clause whereby it would commit to not try Odebrecht officials for the crimes committed in the country, as Argentine law does not allow so. The legal principle invoked by the national judiciary clashed with the one brought up by its Brazilian counterpart, which in legal lingo is called non bis in idem: the impossibility to try a person twice for the same crime.

This hurdle was finally cleared in July 2018, and officials from the two countries were able to come up with a framework that would allow Argentine prosecutors to access the content of the Brazilian investigation. However, no progress has been made anyway. Mainly, it is because of the limitations of Argentina’s obsolete judicial system, but also because of a decision by the judge investigating the local case, Marcelo Martínez de Giorgi, which allowed the defendants to take advantage of this.

In December 2018, La Nación reported that Federal Prosecutor Franco Picardi requested the judge to approve July’s agreement. But instead of doing so and finally accessing the information, the judge decided to ask for the defendant’s opinion. Predictably, they all opposed, and requested all evidence be declared null. Now, the judge has to decide whether their arguments are compelling enough.

Judge Martínez de Giorgi.

This means that even if Martínez de Giorgi rejects the defendants’ arguments, he has given them the possibility of appealing an eventual negative to all superior instances –  an Appeals Courts and the Court of Cassation. And given the more than slow times of the Argentine judiciary, this process will take months, if not years. Therefore, Argentina will remainone of the few countries to not move swiftly to punish acts of corruption whose evidence is in plain sight, and within reach.

Remember that, through different confessions on Brazilian soil that were leaked over the years, it was revealed that Odebrecht admitted to paying at least US $59 million in bribes to Argentine officials in order to be awarded public contracts. Some of them are the project to get the Sarmiento train underground – which is still ongoing, but the government removed Odebrecht from the consortium undertaking the work in 2017 – one to extend pipelines, and another one to build a water treatment plan for state-owned company AySA.

These operations mostly took place during the two Cristina Fernández de Kirchner administrations.  In fact, former Planning Minister Julio De Vido, along with other former officials, has been indicted and is set to face trial in the case investigating irregularities in the awarding of  the public contract regarding the gas pipeline.

The Macri administration, in contrast, has not been tainted by the investigation, considering that by the time it took office the “Lava Jato” was already well underway.

Nonetheless, a person closely associated with the government has been reached by the scandal; however, it’s for activities conducted in the private sector: it’s President Mauricio Macri’s cousin, Angelo Calcaterra. In November of 2017, Prosecutor Picardi requested a judge to have Calcaterra’s assets seized for AR $54 million, in the context of the Sarmiento case.

Angelo Calcaterra (Photo via Perfil)

The current head of the AFI intelligence agency, Gustavo Arribas, has also been reached by the scandal.

A journalistic investigation by La Nación, (that was part of a larger international investigation that involved media in Peru and Brazil) revealed that Arribas had received a total of US $600,000 in different payouts from a financial operations specialist working for Oderbrecht.

Arribas addressed the allegation in a release where he conceded to having received a payment, but attributed it to the sale of a property in Brazil. He denied the existence of any other payments and the idea that they had any link to the events being investigated by the Brazilian judicial system.

In May 2018, La Nación journalist Hugo Alconada Mon published videos with the confessions of high-ranking Odebrecht officials who, speaking before Brazilian prosecutors, specifically described the bribery scheme that took place in Argentina.

Former Odebrecht Vice President for Latin America, Luiz Antonio Mameri, confessed that Calcaterra’s right-hand man, Javier Sánchez Caballero, told company officials that each time they were given funds to continue with their projects, they needed to give him a percentage, as he would then kick it back to government officials. Otherwise, they would no longer be awarded any public contracts.

In mid 2017, Odebrecht was prevented from bidding in public tenders in Argentina. However, other companies involved in the case were not, and for this reason, the Brazilian company filed a lawsuit against the Argentine state on December 31, 2018. In particular, it accused the government of having “double standards” at the time of imposing sanctions. Company lawyers based their arguments also on the consequences – or lack thereof – of the so-called “notebooks scandal,” where the heads of the largest companies in Argentina also admitted to paying bribes to Kirchnerite officials.

With this legal action, Odebrecht did not request all companies be suspended as well, but be reinstated. It also argued that the suspension was supposed to last a year – it was imposed on July 3, 2017 – but that even though more time had passed, it was never lifted.

According to La Nación, several Argentine companies currently being investigated for corruption do show up in a register of flagged companies, but none are involved in the “notebooks” case. This register, which is part of the Interior Ministry, rejected the suit arguing that Odebrecht never explained how it applied the double standard, and indicated that journalistic articles attached in the suit are not conclusive evidence. Federal Judge Macarena Marra Giménez upheld these arguments, but the case continues nonetheless.

In the meantime, Argentina continues to be one of the few countries failing to tackle the illegal actions committed by the disgraced Brazilian company. And it will be a long time until officials issue a conviction. If they ever do.